Itching for a fight

Rarely has there been an event as fractious for the GOP as President Bush's nomination of Harriet Miers to be Associate Justice on the Supreme Court. Leading conservative pundits and analysts have been falling over themselves to see who could issue the most damning public condemnation of the President's move:

'...If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke...' —Charles Krauthammer;

'It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence...'—George Will.

The reasons for their (and others') doubts and disappointment with the President's pick have been well documented and they fall into two broad categories:

1. Miers is not truly qualified from a background and educational standpoint to be on the Supreme Court.

2. Her lack of a documented judicial paper trail attesting to her unquestioned conservative bona fides renders her an undependable pick, a 'stealth'nominee.

While a case can be made as to their legitimacy, if Miers is confirmed, both of those reasons will be irrelevant. The first important case that she rules on will prove her mettle or lack thereof, and all the theoretical hand wringing will be instantly forgotten. If Miers rules in a conservative fashion on matters of 'Under God' in the Pledge of Allegiance, private property issues, affirmative action, or abortion, her lack of prior 'judicial background' will no longer matter to most and conservatives will consider her to have been an excellent choice.

Similarly, as prior examples from Warren to Brennen to Blackmun to Stevens to Kennedy to Souter so aptly demonstrate, a supposedly solid conservative background is no guarantee that a nominee won't devolve into reckless judicial activism once on the bench.

Instead, the biggest disappointment of the Miers affair is that it pushes off—perhaps permanently—the fight that needs to take place in order for the Senate to resume normal functioning: the fight over the so—called Constitutional Option to eliminate the filibuster of judicial nominees.

As is well known by now, the much—publicized Gang of Fourteen (seven Senators each from the two major parties) came to an agreement last spring that there would not be any more filibusters of President Bush's judicial nominees—except for 'extraordinary circumstances'—in exchange for Majority Leader Bill Frist's promise that he would not call for a simple majority vote to change Senate rules and eliminate the filibuster. The exact nature of those 'extraordinary circumstances' has never been defined, but the agreement was sufficient to allow Federal appellate—level confirmation of several previously stalled nominations.

However, if President Bush had nominated a well—known conservative judge to the SC, such as, say, Janice Rogers Brown, the Democrats would almost certainly consider that nomination 'extraordinary,' and therefore they would filibuster. That would have brought the issue to a head, and it would have been dealt with, once and for all.

The Miers nomination simply kicks the can down the road. She's too unknown—by both sides—to trigger a Democratic filibuster, so the filibuster threat issue is still unresolved. Many conservatives, such as talk show host Steve Malzberg speaking on Fox News October 9th, say they would welcome an open filibuster fight, since the discussion would expose the Democrats as being arbitrary obstructionists and utterly defiant of Senate convention, where judges have traditionally been confirmed based on character and personal integrity, not on judicial/political philosophy. Ultra—liberal Clinton nominees Ginsburg and Breyer were confirmed 96—3 and 85—9 respectively, without any threat of filibuster whatsoever by the then—minority Republican Senators. Judge Brown is hardly more conservative than Ginsberg was liberal (Ginsburg was a head lawyer at the ACLU!), yet a Brown nomination would never see the light of day, much less a 96—3 vote on the Senate floor.

The biggest danger for the Republicans is this: By shying away now from the filibuster showdown, they are hoping against hope that their non—confrontational gesture will be repaid in kind when the Democrats reclaim the Senate majority in the inevitable near future. This is political folly. The current partisan atmosphere—fueled by an almost hysterical, fanatical Bush—hatred by the Left—ensures that no such gentlemanly gestures will ever be repaid. Quite the contrary: Many believe that the Democrats will invoke their own 'nuclear option' the split—second they're back in the Senate majority and close off any possibility of Republican filibusters.

The chance to win the filibuster fight outright while the Republicans are in the majority or at least sway public opinion against unfair minority filibusters by exposing the Democrats as obstructionist and partisan was a valuable opportunity that goes wasted by the Miers pick. The Republicans have fouled this one off, and unfortunately they may not get another at—bat during Bush's tenure. That would be a shame.

Rarely has there been an event as fractious for the GOP as President Bush's nomination of Harriet Miers to be Associate Justice on the Supreme Court. Leading conservative pundits and analysts have been falling over themselves to see who could issue the most damning public condemnation of the President's move:

'...If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke...' —Charles Krauthammer;

'It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence...'—George Will.

The reasons for their (and others') doubts and disappointment with the President's pick have been well documented and they fall into two broad categories:

1. Miers is not truly qualified from a background and educational standpoint to be on the Supreme Court.

2. Her lack of a documented judicial paper trail attesting to her unquestioned conservative bona fides renders her an undependable pick, a 'stealth'nominee.

While a case can be made as to their legitimacy, if Miers is confirmed, both of those reasons will be irrelevant. The first important case that she rules on will prove her mettle or lack thereof, and all the theoretical hand wringing will be instantly forgotten. If Miers rules in a conservative fashion on matters of 'Under God' in the Pledge of Allegiance, private property issues, affirmative action, or abortion, her lack of prior 'judicial background' will no longer matter to most and conservatives will consider her to have been an excellent choice.

Similarly, as prior examples from Warren to Brennen to Blackmun to Stevens to Kennedy to Souter so aptly demonstrate, a supposedly solid conservative background is no guarantee that a nominee won't devolve into reckless judicial activism once on the bench.

Instead, the biggest disappointment of the Miers affair is that it pushes off—perhaps permanently—the fight that needs to take place in order for the Senate to resume normal functioning: the fight over the so—called Constitutional Option to eliminate the filibuster of judicial nominees.

As is well known by now, the much—publicized Gang of Fourteen (seven Senators each from the two major parties) came to an agreement last spring that there would not be any more filibusters of President Bush's judicial nominees—except for 'extraordinary circumstances'—in exchange for Majority Leader Bill Frist's promise that he would not call for a simple majority vote to change Senate rules and eliminate the filibuster. The exact nature of those 'extraordinary circumstances' has never been defined, but the agreement was sufficient to allow Federal appellate—level confirmation of several previously stalled nominations.

However, if President Bush had nominated a well—known conservative judge to the SC, such as, say, Janice Rogers Brown, the Democrats would almost certainly consider that nomination 'extraordinary,' and therefore they would filibuster. That would have brought the issue to a head, and it would have been dealt with, once and for all.

The Miers nomination simply kicks the can down the road. She's too unknown—by both sides—to trigger a Democratic filibuster, so the filibuster threat issue is still unresolved. Many conservatives, such as talk show host Steve Malzberg speaking on Fox News October 9th, say they would welcome an open filibuster fight, since the discussion would expose the Democrats as being arbitrary obstructionists and utterly defiant of Senate convention, where judges have traditionally been confirmed based on character and personal integrity, not on judicial/political philosophy. Ultra—liberal Clinton nominees Ginsburg and Breyer were confirmed 96—3 and 85—9 respectively, without any threat of filibuster whatsoever by the then—minority Republican Senators. Judge Brown is hardly more conservative than Ginsberg was liberal (Ginsburg was a head lawyer at the ACLU!), yet a Brown nomination would never see the light of day, much less a 96—3 vote on the Senate floor.

The biggest danger for the Republicans is this: By shying away now from the filibuster showdown, they are hoping against hope that their non—confrontational gesture will be repaid in kind when the Democrats reclaim the Senate majority in the inevitable near future. This is political folly. The current partisan atmosphere—fueled by an almost hysterical, fanatical Bush—hatred by the Left—ensures that no such gentlemanly gestures will ever be repaid. Quite the contrary: Many believe that the Democrats will invoke their own 'nuclear option' the split—second they're back in the Senate majority and close off any possibility of Republican filibusters.

The chance to win the filibuster fight outright while the Republicans are in the majority or at least sway public opinion against unfair minority filibusters by exposing the Democrats as obstructionist and partisan was a valuable opportunity that goes wasted by the Miers pick. The Republicans have fouled this one off, and unfortunately they may not get another at—bat during Bush's tenure. That would be a shame.